3rd April 2020
The law firm Bindmans are bringing a challenge to the government guidance that a person can only leave where they live once a day for exercise and that exercise should be local.
If just reading of such a challenge means you have already formed A Strong Opinion that you now want to type, then this really is not the blogpost for you: other websites are available, and your comment below the line here will not be published.
This post instead sets out the problem and the applicable law, so that you can form a view based on the available information and the applicable law.
As a preliminary point, please note that this is a legal challenge to government guidance – and not to the Coronavirus Regulations themselves.
Formal government guidance – in effect, policy – can be challenged (in general terms) at the High Court if it is contrary to the law, or is unfair, or is disproportionate in its impact.
*
According to Bindmans, the relevant facts are as follows:
“[There are] two families with children with autistic spectrum disorder whose conditions necessitate them leaving the house more than once day for their own well-being.
“One child in particular is deliberately taken to a quiet location that is not local to them, because of their particular needs and where there is a far more limited risk of infection than if he were to remain in an urban environment.”
Bindmans then explain the problem:
“The requirement that everyone is now only able to leave once a day (and can only travel locally) makes it very difficult for these families to be able to manage their children’s high needs and promote their well-being, during a time when lots of disabled people are simultaneously struggling with reduced support from external agencies.
“Keeping them in urban environments also increases the risk of infection of them and others given they are unable to understand social distancing rules.”
Any sensible person reading this would accept that this is a practical problem and, in such circumstances, the parents should be able to take their child to a quiet location.
There would be no direct public health problems in doing so, and the families would comply with the guidance on social distancing – indeed the child is less likely to infect or be infected.
But a sensible view is one thing, what is the legal case?
*
Again, the legal challenge is to the guidance not the Regulations.
The guidance is being challenged because, if interpreted and applied by the police to the Regulations, it could lead to the parents facing criminal liability under the Coronavirus Regulations.
What the parents seek to do is, on the face of it, permitted under the letter of the Coronavirus Regulations – but if the police construe the Regulations in accordance with the government guidance then fixed penalty notices, prosecutions, fines, criminal convictions and criminal records could follow.
The solicitors aver that the guidance disproportionately affect fundamental rights :
“The social distancing measures being put in place by Government are clearly important, but they cannot be used to disproportionately interfere in the rights of those with protected characteristics, particularly those with mental illness, autism or similar conditions that necessitate leaving the house more than once per day.
“Such rights can clearly co-exist with the health measures being put in place and Parliament clearly did not think it necessary to impose the once per day restriction arbitrarily introduced by the Government.
“It is essential the Government needs to rethink this restrictive policy and allow appropriate flexibility where it is necessary and justified.”
The main legal basis of the challenge seems to be that the guidance contradicts the protections of the Equality Act 2010 (as well as under the Human Rights Act 1998).
Relevant here is that the mental health is a protected characteristic under the Equality Act.
A person protected characteristic has legal protection against direct and indirect discrimination (and the discrimination here would be indirect).
Any such discrimination then is subject to the four stage test under section 19(2) of the Equality Act.
In particular, are those who are disabled (the term in the statute) placed at a disadvantage?
There can be no doubt of this.
And so does the guidance go further than is necessary to protect the relevant public policy goal, that here would be the protection of public health in the current coronavirus emergency?
In my view, the guidance is disproportionate in two ways.
First, as long as the affected families comply with social distancing measures, then the public policy goal is unaffected.
And second, there does not need a complete change to the guidance to address this problem, just a further exception for those with relevant physical and mental health issues so they are able to take more exercise and to be travel further than their locality, when necessary.
Such a modified approach would still comply with the Coronavirus Regulations, and it would not affect the position of the greater number of people.
*
The government is expected to respond today or tomorrow, and it may be that the government modifies its guidance to address these concerns.
But if the government does not shift its position then the next step would be a formal legal challenge.
The current emergency does not mean that the law of the land has been jettisoned – the EqualityAct and other laws are still in force – and there is certainly nothing wrong with the government being held to account by the courts at this time.
And if those protected by the Equality Act are facing practical discrimination that goes further than the goal of dealing with the current public health emergency, then it is right that their legal rights be protected and enforced.
**
Thank you for visiting this independent law and policy blog.
If you value this free-to-read and independent legal and policy commentary, including on the emergency coronavirus laws and on Brexit, you can support this blog and my Twitter account by becoming a Patreon subscriber.
You can subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
**
Comments are welcome but pre-moderated and curated, and so comments will not be published if they are irksome.
The question of whether they can effectively socially distance is presented here as being an issue of “common sense” and therefore the case in favour of the parents is manifestly made.
This is wrong.
The question of whether their proposed alternative approach presents an acceptable level of epidemiological risk is a matter for expert opinion.
Pretending otherwise profoundly weakens the case and tries to ignore the purpose of the policy to which the guidance attaches.
Looks like they have a good case . Perhaps local councils could issue badges explaining the exemption.
The problem, in essence, is that the guidance goes further than the regulations – is that right? If so, presumably the government can amend the regulations when Parliament returns to make them more restrictive? As I understand it the corresponding Irish regulations for example specifically state you may only exercise within 2 km of your home. If the British regulations were made more specific (in effect to mirror the guidance) then the challenge would fail would it? I appreciate that is the wrong way round and they should have ensured the legislation did what they seemingly wanted it to do when they passed it – however from the governments point of view it is a solvable problem.
What is the statutory construction path here?
Which legislation does the guidance follow from? Otherwise how can it simply hang in the air? It can’t surely?
I notice that you suggest the guidance could be modified by an exception for those with relevant physical and mental health issues.
However this challenge is based on Section 6 of the Equality Act, and Section 6 (1) sets out 2 conditions which have to be met before Person P has a disability. The first is a physical or mental health issue (Section 6 (1) (a); the second is (b): “the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
There are many examples of P having a physical or mental health issue but it either being the case that it does not cause a substantial or long term inability to carry out day to day activities or it being disputed that the health issue has this effect.
I share your view that something needs to be done, but I suspect an effective remedy will be more complex than you suggest, even when both arms of S6 (1) are met. Here are some examples.
Person P1 has diabetes but is entirely capable of working – most people with diabetes are. However P1 has been firmly advised by P1’s diabetic nurse that P1 should walk a minimum of 5 miles a day including at least some (small) hills. P1 lives in a town or city where walking any distance without coming within 2 meters of others is impossible. If the exemption were based on a health issue then P1 could reasonably get in his car and drive to a place where P1 can walk as advised. However such advice – however firmly given – is usually given orally in a review. How is P1 to establish that P1 qualifies? Would it be necessary to move to some certification regime? Is this practical in present circumstances? And if the test is both arms of S6 P1 will not meet it.
Second example. P2 has been treated for (severe) depression. P2 can establish (e.g. by receipt of state support) that P2 has difficulty in carrying out day to day activities. P2’s mental health condition is such that P2 should be taken for walks or to sit in a park and talk or something similar two or three times a week but that is all but impossible without P3 coming within 2 meters of P2. Here we have a case of somebody (P2) who can probably show that P2 meets the S6 (1) tests – although the Equality Act is not the legal basis on which benefits and support are provided – but where P3 needs some sort of exemption.
It seems to me that the approach that is being taken by Bindmans and your suggestion of tweaking the Regulations and/or Guidance is likely to create the situation which those of us familiar with the FCA Handbook have to grapple with – what had started as a fairly simple, principle based structure has become hugely complex, and often internally inconsistent. It only works because FCA staff take a sensible, practical view and try to crack down only on reprehensible or dangerous behaviour. As Aristotle observed in the Nicomachean Ethics, scientific and mathematical rules may be certain but rules in ethics and politics only hold generally and for the most part.
I am P1! sort of… my post below. I do have a prescription charge exemption card for my condition – may be a suitable ID for this purpose?
This is an example of the issues that would need to be addressed if we move to a prescriptive and detalied list of criteria
Thanks David – very interesting, and I agree with all of what you say. On the Equality Act, would the alleged specific breach be of section 29(6) of the Act, or of section 149, or both?
You raise an interesting point. I am diabetic non-insulin and prior to this the best thing for me to do was do light cardio exercise 3 times a day (fast walking) to manually burn up blood sugar, as my body doesn’t do it ‘automatically’. Diabetes is a protected disability discrimination issue (er I think? not a legal profession person). Surely I should be allowed to still manage my condition in the best medical way?
France have an exception for Autistics to their lock-down provisions which have been widely publicised & not caused too many issues. They acknowledged that it may constitute significant mental harm to some in certain cases.
Thank you, that would not be surprising
France has long had in place a compulsory national ID system, as have most other European states, with the ability to impose penalties for failing to produce required documents on the spot. (In general the sanctions are used with moderation.)
France has had no difficulty in implementing a requirement that individuals carry a certificate explaining why they have left their homes and when they left. (This is a self cert system).
The UK has no real experience of carrying certificates or even cards. There can be a requirement to produce a driving licence or certificate of insurance or MOT but that has become much rarer as the police can check online. An exception is for those who look under 25 buying alcohol but I have never seen a pharmacist demand any proof when a customer uses an exemption box on a prescription form.
Introducing requirements to provide documents would not be easy. If primary legislation were required then it would have to be drafted, Parliament would have to be recalled, and it is unlikely that it could be rushed through as a number of members of both houses would undoubtedly require to be persuaded that the legislation was necessary and there was adequate scrutiny of any necessary secondary legislation.
Yes, some kind of certification scheme would seem to be the way to implement exceptions.
There is an important detail missing. The epidemiological point of social distancing is not only to reduce transmission between individuals, but also to reduce transmission between communities. It might be relevant whether the “quiet place” involves the least possible travel.
I can see their point, but I feel that it is somewhat misguided. It is right that the guidance is both simpler and more restrictive than the actual legislation, because the majority of people will not read the legislation and should not be in any danger of inadvertantly breaking it by doing their best to follow the guidelines. For the majority of people, a simple, clear message will be most effective.
What is more important is that enforcement is strictly to the letter of the legislation, and those responsible for enforcement do not take it upon themselves to enforce the guidelines.
It may also help if some supplementary guidance was issued to cover some of the more common instances where the primary guidance is inappropriate. Cases such as these would benefit from this. That doesn’t mean that the main guidance has to be changed, simply that it is clarified for certain circumstances where it may otherwise be ambiguous or impractical.
Loved para 2 of your intro. Reason over Passion. Wish other “comments” section providers would use it.
The regulation – para 6 – says people may not leave the place where they live “without reasonable excuse” and it then goes on the define “reasonable excuse” to *include* a list of things.
So, surely, this hangs on what is meant by “reasonable”? Arguably, it is not “reasonable” for someone to go out expressly to buy flowers or an easter egg, or to make a 50 mile, 3 hour bike ride, but surely it is also arguable that it is reasonable to undertake actions which are vital to physical or mental health or to manage the anxieties of someone such as an autistic child?
Does the legal argument really need tobe any more i volved than that?
A 50 mile, 3 hour bike ride seems absolutely reasonable to me if you are fit. (I used to cycle a lot until an injury stopped me, and I’m not sure any less than that would really give me much benefit – and I think other people familar with regular cycling would agree with this). I only mention this to empathise your point on reasonableness, and also because I found it suprising, from my point of view, that such an activity would mention that as an example.
I think I share the same problem though. The arguments given seem strong to me except for the following paragraph, which doesn’t seem clear to me. That paragraph is:
“What the parents seek to do is, on the face of it, permitted under the letter of the Coronavirus Regulations – but if the police construe the Regulations in accordance with the government guidance then fixed penalty notices, prosecutions, fines, criminal convictions and criminal records could follow.”
I guess this could be via the 8(3) requirement to do what the police say – which could result in them being made to go home, possibly using force. But I would say this isn’t possible in this case, as 6(2)(b) expressly makes it permitted, and so no interpretation in accordance with the guidelines could force that.
I do think 6(2)(d) is more at risk – there are certainly people who need assistance which are not in the relatively narrow window here. For example, if I were to (contact-free) deliver shopping for a friend who is a single mother of four – which seems socially responsible and is an improvement for all of society, as she would have to bring all to the shops – then I would not have a guaranteed reasonable excuse. Unless I charged her money for it. Or it was part of formalised charity work. 8(3) seems like a problem there.
Presumably there would need to be expert evidence to explicitly support the contention that these children’s conditions necessitate them leaving the house more than once a day and being taken to a quiet location that is not local to them.
I don’t usually comment, and obviously I’m not a lawyer, but there surely must be some kind of “common sense” test?
As you say, the sensible view is that for a family whose children have particular needs which mean they can’t exercise locally, they should travel to the nearest area where it is practical for them to do so.
But again – I’m not a lawyer
@Ewan Slater: “Common sense” is provided for through the notion of ‘reasonable excuse’ in the regulations. But what is ‘reasonable’ ultimately will have to be determined by the courts. Given how vague it is, though, there might be scope for a challenge under Article 7 of the European Convention on Human Rights, which requires criminal offences to be clearly and foreseeably defined.